Crime & Federalism

Defuse the ticking time bomb

Defenders of torture inevitably raise the dreaded "ticking time bomb" scenario.  Leaving aside questions about the plausibility of such a scenario (I have my doubts, but I'm not privy to classified intelligence), there is an obvious solution that doesn't involve legalizing torture.

At common law, courts have long recognized the defense of necessity (sometimes called "choice of evils".)  For example, a jury may refuse to convict a criminal defendant if: 1) he was faced with a clear and imminent danger; 2) he reasonably thought his action would abate the danger; and 3) there was no legal alternative.   See Commonwealth v. Pike, for example.  In the context of torture, see the opinion of the Supreme Court of Israel in Judgement on the Interrogation Methods Applied by the GSS. 

If instructions on the necessity defense were allowed in prosecutions for torture, no jury would convict a defendant who could show he was faced with a true "ticking time bomb" scenario.  Yet this is very different from prospectively legalizing torture, since the putative torturer, faced with the prospect of a criminal prosecution, would be less likely to proceed without a genuine justification.

Unfortunately, the Supreme Court effectively ruled out a general necessity defense to federal criminal law in United States v. Oakland Cannabis Buyers' Cooperative.  But there is nothing to stop Congress from enacting a necessity exception to the federal torture statute.  Provided the government aggressively prosecutes torture cases (including those involving the CIA), I would support such an exception.  I'm guessing it would get used quite infrequently, if ever.

UPDATE: Just to be clear: When I suggest that Congress enact a necessity exception to the torture statute, I mean an exception that allows for a necessity defense to be raised by a criminal defendant, not an exception that prospectively precludes prosecution.

Powerful Images

Is a picture worth a thousand words?  This page should answer that question for you.

(Ht: Overlawyered)

A Season for Dissent

Criticisms of the government are needed - indeed, required.  Only sheep remain silent.  But there is  an appropriate time and place for everything - even speaking out.  Some people just don't get this.

A radical liberal used Memorial Day to attack President Bush's foreign policy.  Though no fan of the Iraq War, I saved my complaints for the other 364 days of the year.  That seemed a small price to pay in the name of decency.

Sadly, another group of rabid liberals want to hi-jack the 9-11 Memorial.  Instead of remembering the dead, they want to mock them.  Instead of building a monument or a reflection pond, where we can ponder and cry over the loss of American citizens whose only crime was going to work, these people want to speak of American atrocities.

Yes, America, like every other country, has blood on its hands.  We should confront our hurtful past, as President Bush did when he apologized to Japanese-Americans who were placed in concentration camps.  But the 9-11 Memorial isn't a place for apologies.  It's a place for remembrance. 

Truth and Pancakes

You're probably not cynical enough.  Reading Filibuster Flip-Flop, which proves that Republicans, Democrats, and the New York Times and Washington Post have all flip-flopped on filibusters, should bring you up (or down) to my level of cynicism about politics and "journalism."

(Story via the Cato Daily Dispatch; you can get your free subscription here.)

Sue the Plaintiff

A month or so ago, a woman claimed to have found a finger in her bowl of Wendy's chili.  Thinking people were skeptical: how could a finger appear in chili?  Unlike a booger, a prankster can't flick a finger into a bowl of chili.  And unlike a band-aid, fingers don't just fall off. 

Ultimately, the woman dropped her lawsuit.  Last night she was arrested for filing a flase report.

Good for the police.  Filing a frivolous lawsuit harms injured plaintiffs, as the taint attaches to valid claims.   What's worse, according to this CNN.com story:

Sales have dropped at franchises in Northern California, forcing layoffs and reduced hours, the company said.

The victims are the employees who can't return to work because Wendy's chili is associated with something Leatherface would have cooked up.  I wonder how many rent payments will be missed because of this foul woman?  Wendy's and trial lawyers need to unite.  This loathesome creature needs to be held to answer.

I think Wendy's should sue the vexatious plaintiff, seeking lost profits and reputational damage.  Moreover, ATLA and individual trial lawyers should stand behind Wendy's.  If you file a frivolous lawsuit, the next defendant appearing in court will be you.

If trial lawyers don't take a firm stand against this woman, her stench will rightfully attach to them.  Though sadly, injured clients will be the ones to suffer.

Letter from Elián González

Dear General Reno and other heros of freedom:

Thank you for returning me to Cuba.  Living in a communist dictatorship is really cool.  As you can see in this photo, I am very happy here.  Some might think that living in a dictatorship is unpleasant.  Those people would be wrong.

In America, you have too many choices.  For example, in the picture where I'm sitting next to Fidel Castro, no one asked me if I wanted to sit next to him.  And I also did not have any choice to turn down this newspaper interview.  In America you get to criticize your leaders and decide whether you like them.  But that just leads you to an existential crisis.

I do realize my mom died trying to bring me to America.  But my dad and uncle Fidel have shown me that she was misguided.

So thanks again for returning me to Cuba.  I'm sure I'll have a nice life doing whatever the government tells me to do.

Signed,
Prisoner González

Courage

I wish that as a high-schooler, I would have had the courage to photograph my principal smoking a cigarette in violation of school rules and state law; post the pics to my website; get suspended from school; and then call the ACLU.  What a wild ride. 

See here (ACLU site) and here (student's blog) for details.

When the Leak is the Story

Tax investigations are private matters.  Strict rules prevent federal officers from telling us that a citizen is under investigation.  And for good reason -- Lots of innocent people are investigated.  It should go without saying that it's called an investigation for a reason.

Yet the LA legal community knows that one of its stars was under investigation for tax evasion.  [No, I'm not going to further harm this lawyer's reputation by naming him.] We know because in May '03, someone told a Los Angeles Daily Journal reporter.

Why was this leaked?  We don't know, but there is one very juicy theory.

After the leak, the United States Attorney's office moved to disqualify this attorney from further civil rights litigation, writing that: "Where ... an attorney opposing a prosecutor's office in an action is being investigated by the same prosecutors office [there is a possibility for a conflict of interest.]"  In other words, the government argued that this lawyer might sell out his clients for a better deal.

The judge who heard the motion flipped out, and threatened the AUSA bringing it with sanctions.  Suggesting that this civil rights legend would sell out anyone to the government, was, at best, scandalous.  Anyhow, you probably smell fish.

Hmmm.... first a leak and then a motion to disqualify.  Indeed, shutting down this lawyer would have been a tactical coup.  Judge Alex Kozinski noted that this lawyer "has a formidable reputation as a plaintiff’s advocate in police misconduct cases; defendants in such cases may find it advantageous to remove him as an opponent." 

The government lost the motion, and the lawyer's clients sued several AUSAs. The clients alleged that the AUSAs leaked information about the investigation as a litigation strategy, and that this strategy violated their right to counsel. 

Now the lawyer wants to know who squawked to the reporter at the Daily Journal.  The Daily Journal is resisting this effort.  They've hired Los Angeles' top litigation botique to resist the subpoena.  They got to protect sources, because protecting sources will lead to more news.

What's newsworthy -- That a local attorney is under investigation for tax evasion, or that someone potentially within the government is leaking information about confidential investigations? According to the Daily Journal, serving the dish about a celebrity lawyer is more newsworthy than exposing moles.

To me, that someone within the federal government is leaking confidential information about an American citizen is more newsworthy than a garden variety tax case.  So why doesn't the Daily Journal publish a real story -- Come on, folks, tell us who's spilling the beans.

$600,000 Verdict in Retaliation Case

Since grade-school we've all been taught to see the world in two shades -- The police are the good guys, and they fight the bad guys.  What happens when the good guys start breaking the law? What happens when a police officer tries exposing corruption within the police department?  What happens when a local police officer helps the FBI and the United States Attorney's office?

That's simple -- He's tossed out.  There's no greater crime than crossing the thin blue line.  Didn't this guy learn anything at the police academy?  Yesterday, however, a jury countered, "Thin blue line?  What about the First Amendment?"

A former Hartford police detective who claimed that he was fired because he helped blow the whistle on police corruption in Hartford won nearly $600,000 in punitive and compensatory damages Wednesday from a federal jury in Bridgeport.

The jury, which deliberated for more than 11 hours in U.S. District Court, found that the city of Hartford, former Hartford Police Chief Joseph F. Croughwell and former Lt. David Kenary should be held financially liable for retaliating against Nicholas Russo after they found out that the detective had offered his help in a federal probe against the police department.

The story gets better.  Norm Pattis was the lead trial lawyer.  Although Norm has a reputation for his skills in winning excessive force cases, he also frequently represents police officers who have been harmed for doing nothing more than tell the truth.  And he has another win.  Congratulations, Norm!

Devon Brown Shooting - The Facts

Devin Brown was shot dead in Los Angeles several weeks ago.  The shooting outraged many in Los Angeles, and his mom has filed a civil rights suit against the police.  Devin Brown's estate is well-represented -- The Cochran Firm took the case.

I'm going to examine the facts and the law, to see if Brown's estate can state a claim under 42 U.S.C. 1983.  Since no one really knows what happened, I'm going to favorably characterize the facts first for the plaintiff, and then for the defendants.

The Facts

The plaintiff's version.
Devin Brown was a thirteen year old student.  Still in junior high, he was well-liked by his parents and classmates.  He had a remarkable smile that could cheer up even a grouch. 

Unfortunately, Devin made a youthful mistake and took a car that did not belong to him.  Since he had never driven before, he wasn't driving steadily the way experienced drivers would.  When he saw the police behind him, he paniced and did not know what to do.  He just kept driving, frozen with fear.  His youthful face was ashen.

Finally, he lost control of the car and it slid to a halt.  Scared and confused, he frantically started pulling knobs and pushing buttons on the vehicle.  These knobs felt so strange to his youthful fingers.  It appears that car started back up, though Devin wasn't trying to make it.  Finally, the car backed up into a squad car.

Fortunately, no one was in the police car when it was struck.  No one was hurt.

Then a police officer opened fire on Devin. Rat-tat-tat-tat-tat-tat-tat-tat-tat-tat.  Ten times the police officer shot at poor Devin.  Even though department policy, drafted by experienced law enforcement officers, required police to think before firing every shot.  Even one stray bullet can kill the innocent, and so the chief of police required thinking before shooting.

But the officer violated official policy.  And his aim was poor.  He ended up shooting a nearby squad car five times.  Poor though his aim was, several bullets hit poor Devin. 

Little Devin, only thirteen years old, was soon pronounced dead.

The defense version.
At 4 a.m. police officers began following a car that was weaving erratically.  Suspecting that the driver was drunk, the police signaled for the car to pull over.  Instead of pulling over, the driver - who police later learned had stolen the car - led the police on a high-speed chase through a residential neighborhood.

Finally, the driver lost control of the car, which started skidding and then slid to a halt.  The driver put the car in reverse and began backing up towards the police officers.  He slammed into the police car.

Fearing for their safety and scared that the driver might harm innocent residents, police officers began shooting at the car.   Tragically, the driver died. 

Had the police officers know Devon's age, they might have acted differently.  But they didn't.

What they did know was that the car was driving out of control in a residential neighborhood, and that it had attempted to run over police officers.

AOL IM - Don't Use

America Online's Instant Message chat device has a revamped "privacy" policy:

[B]y posting Content on an AIM Product, you grant AOL ... the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium. You waive any right to privacy. You waive any right to inspect or approve uses of the Content or to be compensated for any such uses.

This article has more details.

An F. Lee Bailey Comeback?

I sure hope so:

Three years after F. Lee Bailey was disbarred for allegedly misusing $6 million in stock that belonged to a client, the famed attorney is trying to pick up the pieces of his shattered legal career.

Bailey appeared in a Boston courtroom Thursday to ask for a hearing on his bid to regain his law license.

(Via Legal Reader)

The Wrong Man

Everyone just knew that Matt Hale was responsible for the murder of Judge Lefkow's family.  We all just knew it.  I suspect that a lot of evidence when viewed by people who already knew what happened - but just needed to find some proof - pointed to Matt Hale.  And I bet detectives would have found enough evidence to tie Hale to the crime. We would have convicted him, and justice would have been served.

It now seems, though, that someone without any affiliation with Hale was responsible for the Lefkow murders.  This report indicates that Bart Ross was responsible:

Notes found in the car of Bart Ross, who killed himself after a traffic stop in West Allis last night, describe how he killed a federal judge's husband and mother in Chicago and listed additional people he blamed for ruining his life, including two Milwaukee judges.

The notes appear to suggest Ross acted alone in the Chicago murders, and was not planning to kill anyone else, a law enforcement source said.

Weeks earlier Ross confessed his crimes in a letter to NBC:

The hand-written letter, signed by Bart A. Ross, describes how the crimes were committed, saying he intended to kill Lefkow, not her relatives. The handwriting is at times hard to decipher, but NBC5 has made every attempt to transcribe it accurately without edits.

The letter begins, "I regret killing husband and mother of Judge Lefkow as much as I regret that I have to die for the simple reason that they personally did to me no wrong."

The author says he broke into Lefkow's house at 6:30 a.m. and planned to spend all day waiting for the judge to return. However, Michael Lefkow discovered the man in a utility room of the home at about 9 a.m., according to the letter.

"I had no choice ... but to shoot him," the letter states. "Then I heard voice 'Michael, Michael,' so I looked to the hallway (in the basement) and saw an older woman. I had to shoot her too. I followed with a 2nd shot to the head in both cases to minimize their suffering."

In cases like these I lose faith in the criminal justice system, and in all of us.  How can we so arrogantly be sure of what happened in a home thousands of miles away from us?  But we were sure, and we would have extracted our pound of flesh. 

The problem is that we would have taken it from the wrong man.

(links via How Appealing)

The PATRIOT Act

Either the PATRIOT Act is the biggest threat to civil liberties, or it's nothing to worry about.  Seems a big simplistic, 'eh?

Fortunately, there is now a source providing actual discussion of the law.  (My instincts say that most people discussing the PATRIOT Act haven't read it.)  Go visit Patriot Debates, which I've also permalinked.

Via Orin Kerr.

Criminal Blog Happenings

A complete index of Booker and Roper happenings.

"Federalism" in Virginia.

Someone is satisfied with his public defender.

Sketches of suspected murderes in the Lefkow case.

An piece of metal in your mouth is not a "foreign item" in Indiana.

Everything you wanted to know about the Worldcom case. 

Home Ownership

Do you, or does your town, own your home?  Check out the latest Legal Affairs Debate Club.

Lynne Stewart

Someone please educate me -- Why should Lynne Stewart have been acquitted?  I'm reading a lot of commentary that her conviction will harm the attorney-client relationship, and that it might deter others from taking unpopular cases.  Got it.  But why should she have been found not guilty? 

I'm not being curt -- I am really curious what legal defenses were available to her.  About all I know about her case is that Mike Tigar represented her.

UPDATE: Jarett Decker has a thoughtful piece on the Stewart case here.

Lawyer Jokes

First, ham sandwich.

A grand jury delivered the punchline for a senior citizen charged with disorderly conduct after telling lawyer jokes outside a Long Island courthouse: charge dismissed. No kidding.

Second, are these fellows going to sue the lawyer and law enforcement officials who (at least accoring to the grand jury) initiated criminal charges against them without probable cause?  Then again, the two fellows craking lawyer jokes probably hate lawyers so much that they'd never ask one to file a lawsuit on their behalf.

More Hours in the Day...

I've always enjoyed the work of folks like Tony Robbins and Dale Carnegie, and I always enjoy articles on how to get more time out of my day.  But they don't have anything on this guy, who was able to work 94 hours in a single day:

Solo Timothy C. Spayne has paid the federal government $1.24 million to settle allegations that he billed Groton, Conn.-based Electric Boat for up to 94 hours in a single day for representing EB employees in workers' compensation cases. U.S. Attorney Kevin J. O'Connor called it one of the most egregious instances of government fraud during his more than two years in office.
***
During the 1999 and 2000 calendar years, Spayne allegedly charged the company for more than 24 hours of work in a single day 135 times. During that same time period, the complaint contends, Spayne billed between 13 and 24 hours in a single day approximately 226 times.

According to the article, "criminal charges against [Spayne] have been stayed."  Spayne must have an excellent lawyer, since convicting him would be almost too easy. 

Did he use the mail to send his bills?  Well, that's mail fraud.  Did he make calls to discuss his bills with people ouf-of-state?  That's wire fraud.  According to the article, the billing practices date from 1991 to 2001.  That's RICO (assuming two counts of mail or wire fraud).

(Saw it at CrimProf Blog and We Win, They Lose.)

Never Again

This is the type of article that makes my day:

Passengers jumped in to help restrain an unruly traveler on a flight from Philadelphia to West Palm Beach before the plane landed, authorities said.

A flight attendant on Southwest flight 2161 asked passenger Christopher Egyed, 37, to quiet down because he was disturbing other passengers, said Palm Beach County Sheriff's spokesman Paul Miller.

The man later made threats and headed toward the pilot's cabin, and after a flight attendant tried to stop him in the aisle, a group of passengers helped detain him, Miller said.

None of the people who detained this idiot were government officials.  None of them needed to surrender liberty for safety.  Instead, the passengers vigilantly protected and defended their liberty by stopping someone from harming them.

To protect and defend ourselves on airplanes (and elsewhere), it is unnecessary for us to give up liberty.  Rather, we need more liberty, namely we need to exercise our freedom to kick the asses of people who get out of line.  That's what the passengers here did.

John Ashcroft is Evil?

Monday was John Ashcroft's last day as Attorney General, and the liberals are cheering.  Like all Republicans, General Ashcroft hated civil liberties, and he used his position as Attorney General to kill American citizens.  Thus:

• When a sniper shot Vicki Weaver in the head (as Mrs. Weaver clutched her baby to her bosom), Department of Justice officials under his command failed to prosecute her murderer.
• He ordered armed federal agents to attack women and children at Waco, Texas.
• He sent armed federal agents to forcefully take custody of Elian Gonzales so that young Elian could be returned to a communist country.

Counting the massacre at Kent State University, in our post-Jim Crow era there were four appalling civil rights violations in the United States.  Three examples of the worst civil rights violations in modern United States history occurred under President WIlliam Jefferson Clinton and Attorney General Janet Reno.

That's something to think about before criticizing John Ashcroft.

UPDATE: Yeah -- I realize that Bush I was President during the Ruby Ridge massacre.  But he left before the internal DOJ investigation was completed.  Reno was AG when the report was finished.  Not only Reno refuse to file charges, but she also gave the sniper - at taxpayer's expense - a first-class defense, even sending the Solicitor General to defend him before an appeals court.  I consider Reno culpable for not pursuing - and indeed, actively thwarting - justice.

You can read Tim Lynch's nice summary of Ruby Ridge here.

Extortion in Cyberspace

Wired.com has a fascinating article entitled "Gambling Sites Hedging Bets" that describes hackers' extorting money from online gambling casinos.  Here is its lede:

As Super Bowl weekend approaches, Mickey Richardson, general manager of BetCRIS, an online gambling site based in Costa Rica, readies himself for the action. But there's also a cloud hanging over his, and other gambling sites' profitable Feb. 6 weekend.

An e-mail could come at any moment threatening to take down the site unless $40,000 or more is paid to an anonymous account.

Online gambling was, and still is, an industry ripe for the picking and extortion attempts like these are fairly common, not just around the Super Bowl. According to gaming analysts River City Group, estimated 2004 revenues for online gambling reached more than $7 billion. About 350 companies run at least 1,700 gaming sites. It's also a largely unregulated industry -- many of these companies are headquartered offshore in countries without ample law enforcement resources to pursue hackers thousands of miles away, so the site operators often feel the pressure to pay.

Kmiec on Gonzales

Douglas W. Kmiec has written a column entitled "A Tortured Issue" discussing Alberto Gonzales' confirmation battle that is available here.

Juries love the Police

Many of us remember seeing the video of a cop slamming a young black man up against the hood of a car and punching him in the head.  The police officer who assaulated the young man was fired and criminally prosecuted.  After two juries on the assault charges, the officer had the case against him dismissed.

He sued for wrongful termination.  What result?

A former Inglewood police officer who was fired for punching a black teenager and slamming him against a patrol car was awarded $1.6 million Tuesday by the jury in a discrimination lawsuit he and his partner brought against the city.

Not your Everyday Case

This is a disturbing case. 

Rachel Klobertanz  and complaining witness (CW) dated for several months.  RK and CW got into a fight over money but broke up when the got into an argument over money.  During the argument, RK allegedly threw CW into a grandfather clock before trying to strangle her.  CW then obtained a restraining order against RK.

A few months later CW voluntarily went to meet RK and Augusta Kenall in a downtown bar.  The three of them went to an apartment (we don't know whose) to party.

After drinking three bottles of champagne, they go into the bedroom and start have three-way sex.  The sex has so far been consensual.  CW ends up in handcuffs, but she doesn't remember who put them on her. 

Then RK smacked CW in the face, CW demands to be released, and RK and AK allegedly rape and cut her.

For more details (including a note about RK and AK's knife collection), read the full story.

Survivor Champion Charged with Tax Evasion

Richard Hatch, famous for playing - and winning - Survivor while nude, has been charged with two counts of tax evasion.  Title 26 U.S.C. 7201 makes it a felony to "willfully ... evade or     defeat any tax imposed by this title."  Mr. Hatch allegedly failed to report two sources of income:

• $1,000,010 - prize money earned for winning Survivor
• $321,139 - money paid for serving as an on-air radio personality

If the charges are true, then I am perplexed.  How could a reality-TV show champion think he could avoid reporting nearly 1.5mm?  He obtained the money from large corporations who most certainly would have reported the cash outlay.  He deposited the money into his personal bank accounts.  The paper trail establishes that he received the money.  Why not report it?

Now Mr. Hatch must pay his taxes (with penalities and interest), and pay an attorney.  I suspect a good white collar criminal attorney would charge between $50,000 to $100,000 for this matter.

In Business Planning, my professor (a former tax partner at Latham & Watkins) gave us this tax planning advice:  Assume the IRS knows your financial affairs as well or better than you know them before you file your tax return. 

You can't hide from the IRS.

Greedy Lawyers

Lawyers are greedy; they never give to charity; they don't care about anyone but themselves.  Ha!  Read this post and its comments to see those statements cleanly refuted.

Members of Repent America Charged with Hate Crimes

Members of a Christian group, Repent America, have been charged with violating hate crime laws for preaching at a pro-homosexual rally.  I just finished watching the video (linked to below) and I can't see the mebers of Repent America doing anything improper.

PHILADELPHIA -- A group of activists have been hauled into court for an unusual reason -- they are charged with hate crimes because they protested at a gay and lesbian rally.

Members of the Christian group Repent America face up to 47 years in prison for what the city of Philadelphia calls hate crimes.

Four defendants are charged with ethnic intimidation and rioting -- among other things -- after preaching at a gay festival. In October 2004, Michael Marcavage and four other members of Repent America were arrested for protesting at the annual Gay and Lesbian Festival in Center City.

An independent production company, Enough Said Productions, shot video of the altercations.

The full story is here, and video footage of the protest is available here.  More coverage here.

(Hat tip: CrimProf Blog)

UPDATE (2/17/05):  All charges are dismissed.

Michael Skakel Case

I hadn't realized how fascinating the Michael Skakel case was.  In 2000, Skakel was charged and convicted of killing Martha Moxley in 1975.  Skakel was only 15 when he allegedly committed the murder. (CNN has a story on Skakel's appeal here).

Had he been charged in 1975, he would have been tried in juvenile court.  But since Skakel wasn't charged until he was 39 years old, he was tried in superior court.  His lawyers argued, unsuccessfully, that Skakel - at age 40 - should have been tried in juvenile court.  Their argument is based exclusively on statutory grounds.

The interesting issue to me is whether the passage of time raises any ex post facto issues.  If the punishment (or a rule of evidence) increases after the defendant commits a crime, it is a violation of the Ex Post Facto Clause.  Clearly Skakel faced a stiffer penalty being charged as an adult than as a minor.  And the only reason he was tried as an adult was because time passed.

Article I, § 9 of the United States Constitution admonishes Congress that "No [ ] ex post facto Law shall be passed."  In the seminal case, Calder v. Bull, the Supreme Court defined an ex post facto law as one that:

1st.  [ ] makes an action done before the passing of the law and which was innocent when done, criminal; and punishes such action.  2d. Every law that aggravates a crime, or makes it greater than it was, when committed.  3d. Every law that changes the punishment and inflicts greater punishment, than the law annexed to the crime, when committed.  4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

In Miller v. Florida, the Court said that a sentencing scheme that imposed greater punishment that the guidelines in effect at the time of his crime, violated the ex post facto clause.  And in Stogner v. California the Court held that re-opening an expired statute of limitations violated the Ex Post Facto Clause. 

Here, Skakel faces a stiffer penalty due to the passage of time.  However, no legislative act caused him to face greater punishment.

Thoughts?

UPDATE: CourtTV has the defense brief here (it's a large file, so it may take a while to download).  The Ex Post Facto Clause issue isn't even raised.  Have I written about a non-issue?

Idiot Charged with Felony

How do you all feel about this idiot being charged with multiple felonies:

Banach, 38, of Parsippany admitted to federal agents that he pointed the light beam at a jet and a helicopter over his home near Teterboro Airport last week, authorities said. Initially, he claimed his daughter aimed the device at the helicopter, they said.

He is the first person arrested after a recent rash of reports around the nation of laser beams hitting airplanes. Banach was charged only in connection with the jet.

He was accused of interfering with the operator of a mass transportation vehicle and making false statements to the FBI, and was released on $100,000 bail. He could get up to 25 years in prison and fines of up to $500,000.

Drug Kingpin and Legal Fees

Jurist reports:

US District Judge Federico Moreno Tuesday postponed the arraignment of Cali drug kingpin Gilberto Rodriguez Orejuela until Jan. 28, 2005, giving his attorney time to persuade the Treasury Department to allow Orejuela's assets to pay for his legal defense fees. While attorney Jose Quinon plans to defend Orejuela's plea of innocence to charges of cocaine smuggling and money laundering, he must first clarify the status of Orejuela's assets previously frozen by the Office of Foreign Assets Control. A Treasury department spokeswoman commented that the OFAC has granted licenses in similar cases where the money would be used for legitimate purposes.

The full story and background is available at this link.  I previously blogged about OFAC here.

Megan's Law in California

Criminal Appeal points to a (it seems to me anyway) patently unconstitutional law.

Sentencing Law & Policy collects posts about sentencing and sex offenders.

Prof. Kerr discusses the constitutional implications of a government's telling us to "Keep Out" of its databases.

PD Dude wrestles with the conflict Meagan's Law has caused between his role as PD and parent.

More Sources on Pardons

Professor Podgor wonders why blue collar criminals aren't getting any love from President Bush.

Professor Chin collects all of the Bush-won't-pardon sources.

TalkLeft smells something fishy on Pennsylvania Avenue.

Mr. Geidner has a post entitlted, "Pardon Me, But Why?"

Footprints in Cyberspace

The unique footprint - your IP address - that we leave at every blog we visit, and with every e-mail we send, is what led police to the fetusnapper:

In the end, it wasn't a fingerprint or a blood spatter that led authorities to the woman suspected of strangling a mother-to-be and cutting the baby from her womb. It was an 11-digit computer code.

Police zeroed in on Lisa Montgomery in the most 21st century of ways, by trolling computer records, examining online message boards and — most important — tracing an IP address, 65.150.168.223, to a computer at her Melvern, Kan., home.

(Via Drudge)

A Remarkable Story

Chris Muha, a 2L at Yale Law School wrote:

On Wednesday, December 1st, the Ohio Supreme Court overturned Terrell Yarbrough’s aggravated murder convictions on what it thought was a jurisdictional technicality.  As the brother of one of the men beaten and murdered by Yarbrough, I’m outraged by the common sense injustice of the decision:  everyone – including the Court and Yarbrough’s public defenders – admits that he’s guilty of the murders. As a law student, though, I’m also angered by the fact that the Court seems to have arrived at its decision via a serious misinterpretation of Ohio’s criminal jurisdiction statutes. Professor Berman has been kind enough to set aside this space for me to solicit comments on the court’s opinion and on my critique of it. I understand the importance of rule-of-law values in statutory interpretation and can respect, if not accept, the Court’s opinion if it’s a plain, literal reading of Ohio’s criminal jurisdiction statute. I’ve thought about little else the past 10 days, though, and just can’t see it. I’m grateful to everyone who offers their reflections here and helps me think through these issues, regardless of what your thoughts are.

It seems that Mr. Muha is merely looking for a rational explanation of the law.  If you're interested in providing one (or learning more about this sorrowful story), go to Sentencing Law & Policy.

Spector in Good Hands

From today's LA Daily Journal (subscription required):

Bruce Cutler, a colorful New York attorney known for "Brucifying" witnesses during a 17-year stint defending Mafia don John Gotti, said he began representing Phil Spector after the music producer's previous lawyers abruptly quit.      

Spector is facing murder charges for the 2003 death of actress Lana Clarkson at his Alhambra mansion. Spector has said Clarkson "kissed the gun" and committed suicide.      

Cutler and Los Angeles attorney Roger Rosen earlier this month replaced Leslie H. Abramson and Marcia A. Morrissey, who in turn had taken over from lawyer Robert Shapiro of O.J. Simpson fame.

You can read about Cutler in his book, Closing Argument: Defending (And Befriending) John Gotti, and Other Legal Battles I have Waged.  The book is a very good read, though the reader can gauge for himself or herself whether the size of the title is directly proportional to the size of Cutler's ego.

Very Sad

I realize that it seems unfair for underpaid U.S. Army soldiers to risk their lives protecting ungrateful shieks - all at U.S. taxpayer expense.  And I also realize the pressure a soldier must feel to protect his comrades in arms.  After all, the only things our soldiers have in Iraq are each other.  Though that does not excuse what this soldier - a supposed leader of combat soldiers - did, I still feel very sorry for him.  After all, it is all too easy for to criticize him from air-conditioned offices where our greatest real-world obstacle is finding parking.

FORT CAMPBELL, Kentucky (AP) -- An Army lieutenant received a split verdict when a jury acquitted him in the theft of a SUV in Iraq but convicted him of lying about the incident.

A jury deliberated nearly six hours Thursday night before acquitting First Lt. Bradley Pavlik of accessory after the fact to robbery and convicting him of making a false statement. He faces sentencing Friday morning.

During a two-day court-martial, military prosecutors argued that Pavlik knew his soldiers robbed a sheik of his SUV in Iraq, then helped them cover up the crime.

Pavlik's civilian attorney, Frank Spinner, argued that there was no evidence that Pavlik knew one of his soldiers planned to commit a robbery.

Mob Lawyers

First, I'm jealous.  This guy is doing some really cool cases and obtaining great results. 

Second, why do mob lawyers often end up as defendants? (story)

As the prosecutors see it, it is hard to tell the lawyers from the defendants in the case against John A. Gotti, the prince of the Gambino crime family who is accused of attempted murder in the shooting 12 years ago of Curtis Sliwa, the talk show host.

At Mr. Gotti's arraignment yesterday in Federal District Court in Manhattan, the prosecutors revealed that key evidence in their case consisted of tape recordings of conversations over 15 months between Mr. Gotti and one of his lawyers, Richard Rehbock, in the meeting room reserved for prisoners and their attorneys at the federal prison in Ray Brook, N.Y.

Michael McGovern, the lead prosecutor, said that Mr. Rehbock had been described in an earlier trial of Gotti associates as the "house counsel to the Gambino family." Mr. McGovern said the recordings were made under a court order after prosecutors convinced a judge that they had reason to believe Mr. Rehbock was acting as "an emissary for messages" between Mr. Gotti and Gambino foot soldiers outside the prison. The recordings were made between March 2003 and last May.

Didn't this guy learn anything from Bruce Cutler?

RIAA Buys DOJ

Going Hollywood: DOJ Joins File-Sharing Fight

After years of agitating over Internet piracy and spending millions of dollars to press their case in Washington, the entertainment and software industries have gained a powerful ally: the U.S. Department of Justice.

With just months until the presidential election that could end his term in office, Attorney General John Ashcroft has launched an ambitious effort to crack down on digital piracy and protect the interests of copyright holders. The initiative is led by Ashcroft's deputy chief of staff, David Israelite, who chairs a newly formed task force on intellectual property issues.

The high-level task force, which includes a dozen influential DOJ and Federal Bureau of Investigation officials, will draft plans to revamp federal law enforcement's approach to IP matters, including widespread file sharing over peer-to-peer networks.

I feel much safer knowing that our prisons will soon be filled with - gasp! - file-swappers.

An article on Goldstein & Howe's Supreme Court Clinic

Here is an article on the Supreme Court Clint Tom Goldstein started at Stanford Law School.  One point in the article caught my attention.

Goldstein, 33, has earned the grudging respect of his elders and is billing more than $1 million a year -- still undercutting his top competitors, though not by as much.

Tom Goldstein is one of my role model.  He is why I love America.  With the right combination of talent, courage, and marketing, anything is possible. 

Goldstein decided that he was going to begin a Supreme Court practice; he left a cushy (and prestigious) BigLaw job to do it; and he works his tail off.  His blog and numerous talks for the CATO Institute (one of which can be found here) and other organizations must take a significant amount of time.  But I imagine the talks help bring in business.  Anyhow, he decided to put his mind to becoming a leading Supreme Court advocate.  And he has done it.

Tom Goldstein has answered many of my questions regarding points on the Supreme Court.  Marty Lederman, a co-blogger at SCOTUSBlog, provided significant feedback on project a of mine.  This even though they are, most emphatically, not federalists.  By all accounts, they are genuinely nice guys who are generous with their time.  I hope they continue to become even more successful.

Reason, Crime, and Federalism Reason

Reason Online has this article: "Washington’s Biggest Crime Problem: The federal government’s ever-expanding criminal code is an affront to justice and the Constitution."